STATE FARM MUTUAL AUTOMOBILE INSURANCE COMPANY, APPELLANT,
v.
NANCY D. BEACH BENTON, INDIVIDUALLY AND WILLIAM BENTON, AS THE HUSBAND OF NANCY O. BEACH BENTON, APPELLEES
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State Farm appealed an equitable distribution order in a no-fault insurance case, arguing the trial court deviated from established guidelines. The appellate court affirmed, holding that the insurance carrier was estopped from raising procedural objections on appeal after failing to object or present evidence at trial.
The court held that State Farm was estopped from objecting on appeal to the procedure employed because it offered no evidence, made no objection at trial, and presented no effort to challenge the equitable distribution before the trial court.
[1] A party who fails to object to a procedure employed in the trial court and offers no evidence is estopped from objecting to that procedure on appeal.
[2] The burden is on the moving party to establish a record sufficient to support an equitable distribution award.
Previewing 2 of 4 headnotes on this case. FLexlaw’s editorially structured points of law — every proposition, pinpointed — are reserved for members.
Join FLexlaw to unlock all legal intelligence“when we are presented with a record showing a petition alleging facts sufficient to support the discretion of trial judge in making the award and showing no objection to the procedure employed and revealing no effort by the party subsequently appealing the award to object or offer any evidence, then we hold that the dissatisfied party is estopped to object on appeal to the procedure employed”
Establishes the court's holding that failure to object or present evidence at trial results in estoppel from raising procedural objections on appeal
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Join FLexlaw to unlock all legal intelligenceThe insured received no-fault insurance payments and then settled a claim against the negligent party. The insured filed a Petition for Equitable Dist…
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PER CURIAM.
This is an appeal by the no-fault insurance carrier from an order of equitable distribution entered pursuant to Fla.Stat. § 627.736(3) (b). The order will be affirmed. This opinion is written to express our view as to the record ordinarily necessary to support such an appeal.
The insured received no-fault payments, then received a settlement after filing suit against the negligent party. The insured thereupon filed a “Petition for Equitable Distribution,” and served the petition on her no-fault insurance carrier together with a notice of hearing for the trial judge’s motion calendar. The insured and the carrier appeared at the time and place specified. There was no objection of any kind by the carrier to the procedure employed.1 The petition set out facts which, if proved, would have supported the discretion of the trial judge to make an award in the amount represented by the order appealed.2 The insurance company offered no evidence of any kind and, therefore, the cause was submitted upon the oral argument presented. The order appealed was entered and this appeal followed.
The burden of the carrier’s argument here is that the trial court departed from the guide lines set forth in State Farm Automobile Insurance Co. v. Hauser, Fla.App.1973, 281 So. 2d 563, and Hartford Accident & Indemnity Co. v. Diaz, Fla. App.1974, 296 So. 2d 504. We are unable to determine that question upon the record before us. The carrier argues that it is the duty of the moving party in the trial court to make a record that will justify the equitable distribution. See Liberty Mutual Insurance Company v. Guillet, Fla.App. 1974, 294 So. 2d 1. This is true. Nevertheless, when we are presented with a record showing a petition alleging facts sufficient to support the discretion of trial judge in making the award and showing no objection to the procedure employed and revealing no effort by the party subsequently appealing the award to object or offer any evidence, then we hold that the dissatisfied party is estopped to object on appeal to the procedure employed. See Marsh v. Sarasota County, Fla.App.1957, 97 So. 2d 312, and Paul v. Ranter, Fla. App.1963, 155 So. 2d 402.
Affirmed.
. The local rule of the Eleventh Judicial Circuit, approved by the Supreme Court, provides for a limited hearing on the motion calendar. Rule 3 is in part as follows:
“All motions and other pleadings that cannot be summarily disposed of ex parte but require not more than five minutes to be heard, and not justifying a special appointment, shall be heard on Motion Days and after due notice (not less than 3 clear days) is given to the adverse party or his attorney of record.”
*
. The petition if relying on matters outside the record should be verified.
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Cited By
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Protective Nat'l Ins. Co. v. Sodano, 323 So. 2d 305 (Fla. 3d DCA 1975)…PER CURIAM. Affirmed on the authority of State Farm Mutual Automobile Insurance Company v. Benton, Fla.App.1975, 322 So. 2d 618.…
Authorities Cited
- Fay S. Paul v. Risa Bonnie Kanter & the Hertz Corp., 155 So. 2d 402 (Fla. 3d DCA 1963)
- Marsh v. Sarasota Cnty., 97 So. 2d 312 (Fla. 2d DCA 1957)
- State Farm Auto. Ins. Co. v. Hauser, 281 So. 2d 563 (Fla. 3d DCA 1973)
- Liberty Mut. Ins. Co. v. Guillet, 294 So. 2d 1 (Fla. 3d DCA 1974)
- Hartford Accident & Indem. Co. v. Diaz, 296 So. 2d 504 (Fla. 3d DCA 1974)